In 1995, Kanane, the appellant, was charged in the magistrate’s court with two offences. The first was a charge under Section 164(c) of the Penal Code, ‘Unnatural offences’, and the second under Section 167 of the Penal Code, ‘Indecent practices between males’. The appellant pleaded not guilty to both charges and argued that the sections he had been charged with contravened the Constitution. The court agreed that this raised a constitutional issue which ought to be determined by the High Court before the trial proceeded. The case was referred to the High Court where the appellant set out why the provisions contravened Section 3 of the Constitution (freedom of conscience, of expression and of privacy, assembly and association) Section 13 (freedom of assembly and association) and Section 15 (protection from discrimination). The judge in the High Court ruled that the provisions did not violate the Constitution and the appellant brought the case to the Court of Appeal.
The Court of Appeal found that prior to its amendment Section 167 of the Penal Code was discriminatory, aimed entirely at men who committed acts of gross indecency with one another. There was no such prohibition for women. As it stood, the Section would have been in violation of Sections 3 and 15 of the Constitution. However, the court stated that any need to strike down the Section fell away with the enactment of the Section 167 amendment in 1998 which made the provision gender neutral.
Turning to Section 164(c) the appellant argued that the provision was discriminatory against men by the fact that the offender, in committing the offence, permitted only a male person and not a female to have carnal knowledge of him or her. Secondly, the appellant claimed that Section 164(c) in its pre and post-amendment form was discriminatory and in violation of Sections 15 and 3 of the Constitution in that it subjected one class of persons to restrictions to which other persons in Botswana are not subjected, that class of persons being gay men and lesbians.
The court considered this argument at length, observing decriminalisation in a number of states. The court stated that, regarding Section 164(c), permitting only males to commit the act which gave rise to the offence of the perpetrators was not the type of gender discrimination envisaged in the court’s own judgment of Attorney-General v Dow.
The court considered discrimination on the basis of sexual orientation and whether it should be considered discrimination under Section 15(3) of the Constitution. The court found that there was no evidence put before either court that public opinion in Botswana has so changed and developed that society demanded decriminalisation. The court evidenced this referring to the Penal Code Amendment Act No 5 of 1998. It stated that the legislature had not paid attention to Sections 164 and 167 and concluded ‘that so far from moving towards the liberalisation of sexual conduct by regarding homosexual practices as acceptable conduct, such indications as there are show a hardening of a contrary attitude.’
The court held therefore that Section 167 of the Penal Code- as it stood when the appellant was charged under it- was in violation of the Constitution but that Section 164(c) was not.
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